United States v. Atherton

• Citation: 430 F.2d 741
• Decision Date: 10 September 1970
• Docket Number: No. 23406.,23406.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Stewart ATHERTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

430 F.2d 741 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Stewart ATHERTON, Defendant-Appellant.

No. 23406.

United States Court of Appeals, Ninth Circuit.

September 10, 1970.

J. B. Tietz (argued), Los Angeles, Cal., for defendant-appellant.

T. E. Orliss (argued), Ronald S. Morrow, Asst. U. S. Attys., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before HAMLEY, BROWNING and ELY, Circuit Judges.

BROWNING, Circuit Judge.

Defendant appeals from his conviction for refusing induction into the armed forces. 50 U.S.C. App. § 462. He contends that his conscientious objector claim was rejected because of a misinterpretation of 50 U.S.C. App. § 456 (j), and that his I-A classification is without basis in fact.

The minutes of the local board suggest three possible bases for the rejection of defendant's conscientious objector claim.

First, the local board may have relied upon 32 C.F.R. § 1625.2, which prohibits the reopening of a registrant's classification after the mailing of an order to report for induction unless the board first specifically finds that there was a change in the registrant's status after the order to report was mailed.¹

Here, however, the local board issued two orders to defendant to report for induction. The first was cancelled by the board when defendant filed his Special Form for Conscientious Objectors (SSS Form No. 150). The second order, upon which this prosecution rests, postdated the filing of defendant's Form 150; and therefore the local board could not properly have applied 32 C.F.R. § 1625.2 to defendant's claim.

The second and third bases for the rejection of defendant's claim by the local board are related, and are suggested by the board's statements that "Mr. Atherton is not a member of any particular religious sect," and that "He bases his claim on his own personal beliefs."

Exemption under section 456(j) of the statute is not predicated upon membership in a religious sect and adherence to its tenets. As the Supreme Court pointed out in United States v. Seeger, 380 U.S. 163, 172, 85 S.Ct. 850, 857, 13 L.Ed.2d 733 (1965), "Congress recognized that one might be religious without belonging to an organized church * * *", and intended section 456(j) to focus upon "individual belief — rather than membership in a church or sect * * *."

Defendant expressly claimed that his objections to war in any form were based upon religious faith. "In such an intensely personal area, of course, the claim of the registrant that his belief is an essential part of a religious faith must be given great weight." United States v. Seeger, supra, 380 U.S. at 184, 85 S.Ct. at 863. There is nothing in the record to contradict defendant's claim.

The local board's statement that defendant "bases his claim on his own personal beliefs" might be read as a reference to the statutory provision excluding claims based upon a "merely personal moral code." But this exception applies only if the registrant's claim rests upon "a moral code which is not only personal but which is the sole basis for the registrant's belief and is in no way related to a Supreme Being." United States v. Seeger, supra, 380 U.S. at 186, 85 S.Ct. at 864 (emphasis added); see also Fleming v. United States, 344 F.2d 912, 915-916 (10th Cir. 1965). As we have said, this is not true of defendant's claim.

The government contends that the board classified defendant I-A on the independently sufficient ground that his avowed beliefs were not sincerely held — pointing to an entry in the board's minutes stating that when defendant asked why his claim had been rejected, "The Board told him that they decide whether they feel he is a genuine conscientious objector, and that they base their decision on the information he gives them."

Deciding whether a registrant is "a genuine conscientious objector," however, is not the equivalent of deciding whether his claim is made in good faith; and the balance of the minute entry indicates that the board was referring to whether defendant's claim fell within the statutory definition of a conscientious objector and not to the sincerity of his claim.

Finally, the government urges that in any event the basis for the local board's classification is irrelevant because defendant's I-A classification was reviewed and continued by the state appeal board.

32 C.F.R. § 1626.26 requires state appeal boards to classify appealing registrants anew; and it has been held that since official agencies are presumed to operate in a lawful manner, deficiencies in a local board classification may be rendered harmless by reclassification by the state appeal board. E. g., Storey v. United States, 370 F.2d 255, 258-259, (9th Cir. 1966); Cramer v. France, 148 F.2d 801, 804-805 (9th Cir. 1945); see also Bowles v. United States, 319 U.S. 33, 35, 36, 63 S.Ct. 912, 87 L.Ed. 1194 (1943).

This doctrine does not save the present prosecution, however, for in the light of the record and the rationale underlying the cure doctrine, it cannot be assumed that the appeal board applied proper classification standards in this case.

Despite occasional sweeping statements that appeal board reclassification renders prior local board proceedings irrelevant, the rule that appellate reclassification cures local board errors "is not inflexible." United States v. Stepler, 258 F.2d 310, 316 (3 Cir. 1956). A survey of the cases indicates that the rule is applied only where it appears from the nature of the deficiency or from other circumstances in the record that it is reasonable to assume that the defect in local board proceedings was in fact cured by appellate reclassification. Thus, ordinarily a registrant's claim of local board bias is cured by reclassification by an appeal board;² but not where the record suggests that the local board may have influenced the state board's action.³ Likewise, local board errors relating to the presentation of a registrant's case are corrected by appellate reclassification where any significant deficiency in the record resulting from the errors was corrected before the appeal board acted;⁴ but not where the record fails to exclude the possibility that the local board's unlawful action may have resulted in an inadequate presentation of the registrant's claim before the appeal board.⁵

Cases dealing with local board utilization of an illegal standard in classifying a registrant draw a similar distinction — holding that appellate reclassification renders the local board error harmless where the record supports the conclusion that the appeal board did not apply the same standard as the local board,⁶ but reaching the opposite result where, as in this case, the record is silent regarding the standard applied by the appeal board and there is nothing to support an inference that it differed from that applied by the local board.⁷

As Judge Moore recently suggested in United States v. Morico, 415 F.2d 138, 143 (2d Cir. 1969), this result may be mandated by the Constitution:

"Because the draft system directly affects personal liberty, the appellant must have a right to have his classification judicially reviewed at some point. * * * While the right to have a court review the action of the board is * * * restricted, review must be meaningful * * * in the sense that it must encompass a record from which a court can determine whether there was a basis in fact for decision, what that basis was and whether the board applied the correct legal standard." (Citations omitted; emphasis added.) ⁸

In any event, the general presumption that appeal boards act lawfully does not alone suffice to cure a local board's use of an illegal classification standard.⁹ And since there is nothing in the present record which would lend direct or inferential support to a conclusion that the appeal board's classification was not based upon the illegal standards applied by the local board, defendant's classification cannot stand.

The judgment will issue forthwith, and no petition for rehearing or suggestion for in banc rehearing will be entertained. Rule 2, Fed.R.App.P.¹⁰

Reversed.

ELY, Circuit Judge (dissenting):

I respectfully dissent. This appeal has had a long and troubled history, and I now file the sixth opinion to be issued in the case. Indeed, the vacillation of the majority in striving to enunciate a palatable rationale for its result reinforces my conviction that the judgment should be affirmed.

The majority filed its first opinion on October 9, 1969, reversing Atherton's conviction because the appeal board failed specifically to recite a finding that Atherton's belated protestations of conscientious objector beliefs were insincere. I dissented from that opinion also. Thereafter the Government, "with the approval of the Solicitor General of the United States," filed a Petition for Rehearing En Banc, vigorously urging that the majority's original opinion conflicted with numerous precedents, including prior opinions of our own court. The majority then withdrew its original opinion and issued, on April 1, 1970, a substitute that I found equally unacceptable. That second opinion, as I saw it, substituted the majority's judgment for that of the Selective Service authorities on the question of the sincerity of Atherton in the profession of his alleged conscientious objector beliefs. I dissented from the second opinion, setting out, in fine detail, the "objective facts before the Appeal Board * * * which cast doubt on the sincerity of Atherton's claim." Witmer v. United States, 348 U.S. 375, 382, 75 S.Ct. 392, 396, 99 L. Ed. 428 (1955).

The Government then filed a second Petition for Rehearing En Banc, attempting to demonstrate that the majority's second disposition was also wrong and that there was indeed a "basis in fact" for the challenged classification. Apparently, the majority now agrees with the Government's and my position in that respect also, for it now withdraws its second opinion and...